all counts with the possible exception of Count IX, I refused to give an unqualified instruction to that effect with respect to Count IX.
As to the first eight counts, the defendant testified unequivocally that he had never received any money from Abrams or anyone else. As to the tenth count, the defendant testified unequivocally that he had never requested or urged Mr. Salkind to withhold any true testimony from the Grand Jury. Therefore, as to those counts, the defendant was entitled to, and received, an unqualified instruction that if the jury believed his testimony they must acquit.
As to Count IX, however, the defendant's testimony was not so clear-cut, and an unqualified instruction to acquit if they accepted the defendant's testimony could have been misleading. It is true that, in the course of his testimony, the defendant stated that he did not actually intend to request Mr. Sweeten to destroy the Braunstein letter, although he admitted requesting the destruction of his letters to the Osteopathic College. On the other hand, he also testified that it would have been reasonable for Mr. Sweeten to interpret what he said and did as a request to destroy the letter. He further stated that he did not know what he would have told Mr. Sweeten, had he known for certain that the letter existed. And finally, he sought to explain his conduct as motivated by a desire to shield his family from adverse publicity, and by his panic at being blackmailed by Abrams.
As discussed with counsel in chambers at the time, I was concerned that an overly broad instruction, to acquit if they believed the defendant, might be interpreted by the jury as meaning that they should acquit if they found that the defendant was motivated by a desire to protect his family, or acted in panic. There was also the risk of misleading the jury into believing that only an express verbal communication of the request to Mr. Sweeten would suffice.
Accordingly, with respect to the ninth count, the jury was told that it was a question of how they interpreted the defendant's testimony. The jury was specifically told that they must acquit unless they found beyond a reasonable doubt that the defendant did communicate to Mr. Sweeten a request to remove and destroy the letter, that he acted willfully and intentionally, and that he acted corruptly, for the purpose of preventing the letter from coming to the attention of the Grand Jury. I am persuaded that no error was committed.
The defendant also argues that the Court misconstrued the defendant's testimony with regard to Count IX. I am not aware of any such error, but there would be no grounds for present complaint in any event, since (1) the jury was expressly reminded to accept their own recollection of the testimony, and (2) at the jury's request, all of the testimony of Mr. Sweeten and of the defendant on this subject was reread to the jury in the course of their deliberations.
Additional errors are referred to in the defendant's Motion for a New Trial, but were not pressed at oral argument, and may have been abandoned. In any event, they are clearly without merit. In calling the jury's attention to the two principal factual issues (did the defendant receive bribes, and did the defendant corruptly attempt to obstruct justice?), I expressly reiterated the necessity of proof of each essential element of each crime beyond a reasonable doubt. In summarizing the principal issues upon which the testimony was in conflict, I clearly did not alter the Government's burden of proof. And I believe it was proper to charge the jury that they could properly convict on Counts IX and X if they concluded beyond a reasonable doubt that the defendant acted corruptly in attempting to impede the Grand Jury's investigation; and to refuse to charge that this must have been his "principal" motivation. The case cited by the defendant in support of the latter proposition, U.S. v. Baker, 494 F.2d 1262 (6th Cir. 1974), simply does not support the defendant's argument.
In summary, I am satisfied that the defendant received a fair trial, and that there is no valid reason to disturb the jury's verdict. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 434 F. Supp.]
AND NOW, this 2th day of June, 1977, it is ORDERED that the defendant's Motion in Arrest of Judgment and Motion for a New Trial are DENIED.
JOHN P. FULLAM / J.
AND NOW, this 2th day of June, 1977, the Court having denied the defendant's post-trial motions, and it appearing to the Court (1) that extensive evidence was presented at trial concerning the defendant's character and background; (2) that an appeal of the defendant's conviction is likely, and that preparation of a presentence report while an appeal is pending would necessarily involve certain constraints; and (3) that, under the circumstances, no presentence report is necessary, it is therefore ORDERED:
1. That the preparation of a presentence report is dispensed with in this case.
2. That the defendant shall appear for the imposition of sentence at 10 o'clock a.m., on Friday, June 10, 1977, Courtroom 15-A, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
JOHN P. FULLAM / J.